MegaUpload lawyer says the company couldn't tell whether users' data was legal or not so how can anyone else?

The major Hollywood film studios earlier this week said in court documents that they won't object if data is returned to MegaUpload users as long as the files were "legitimately acquired."

MegaUpload's representatives were unimpressed. They say the Motion Picture Association of America, the studios' trade group, knows that it's nearly impossible to determine for sure if a movie was legally purchased or not.

"Accept this as posturing," said Ira Rothken, the attorney leading MegaUpload's worldwide defense. Rothken said the MPAA's "illusory request for 100 percent certainty" on which digital files are legal and which ones aren't isn't feasible.

The United States government has accused MegaUpload's managers of operating the site as part of a conspiracy to commit copyright violations. In January the cloud-storage service was shut down and the company's managers were arrested. U.S. officials are now trying to extradite MegaUpload founder Kim DotCom and three others, who now reside in New Zealand, to stand trial. DotCom and the other defendants say they are innocent of the charges.

One of the side issues of the case involves what is to be done with data belonging to former MegaUpload users. Kyle Goodwin, a videographer in Ohio says he stored video of high school sports events at MegaUpload and has asked the U.S. court overseeing MegaUpload's case to return it to him. There is still the possibility that MegaUpload's data may still be destroyed.

The MPAA said in the court documents that filed that the organization was sympathetic to the plight of MegaUpload's former users. Howard Gantman, an MPAA spokesman responded to Rothken's comments.

"As we've said from the start, we are willing to work with the court and the interested parties to help craft a process that would enable innocent users to retrieve their content while ensuring that users who used MegaUpload to store and distribute stolen content can't get that stolen material back," Gantman told CNET. "We aren't wedded to any particular process for achieving that goal, and recognize that there may be economic and technical challenges in any retrieval process, but we will continue to engage in good-faith discussions to ensure that the rights of all affected parties are protected."

The Electronic Frontier Foundation, which advocates for Internet users and tech companies, is representing Goodwin on this matter. Julie Samuels, an EFF attorney responded to the MPAA motion by saying: "We were glad to see that MPAA doesn't intend to stand in the way of third parties getting their rightful, legal property back."

MegaUpload's lawyers leave federal district court in April after a hearing in the piracy case.
Greg Sandoval/CNET

Right now, all of MegaUpload's server information is being stored by the company's former host service Carpathia Hosting. Carpathia wants someone to either start paying the storage fees or it wants the courts to allow it to delete the information. The MPAA has said it's only concern was preventing pirated movies and TV shows from being circulated again. According to Rothken and EFF, the government has been reluctant to make any deals regarding MegaUpload's data.

The main hurdle is that it's difficult to efficiently discern what's legal and what's not. If the government can't do it, how could anyone expect a third-party service provider to accomplish the task, asks Rothken. This situation only helps to support MegaUpload's innocence, Rothken said.

"Cloud storage companies, by their nature, are not looking inside the private storage areas of users," Rothken said. "Whether something is infringing is based on context. MegaUpload was not privy to the information it would need in order to be able to make these types of ad hoc assessments."

Notes: MegaUpload's extradition hearing in New Zealand is scheduled for August 6 but we may be in for some delays. The United States, through the New Zealand government, says now that it may not be ready to hand over the documentation and data that a New Zealand court has required it to disclose to MegaUpload's defense team...Rothken, a long-time Silicon Valley attorney is managing about 30 lawyers who involved in defending MegaUpload in the United States, Canada, the Netherlands, New Zealand, and Hong Kong.

Update: 12:28 p.m. PT: To include the MPAA's response to Rothken's comments.

About the author

Greg Sandoval covers media and digital entertainment for CNET News. Based in New York, Sandoval is a former reporter for The Washington Post and the Los Angeles Times. E-mail Greg, or follow him on Twitter at @sandoCNET.
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